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The parties were divorced in January,
1977. The judgment nisi made provision for alimony,
support, and property division by incorporating an
agreement executed by the parties the previous
month. Notwithstanding the survival of the agreement
as an independent contract, the agreement made
provision for judicial modification of alimony and
support necessitated by any major change of
circumstances not the voluntary act of the parties.
In February, 1978, Merrill was found to be in
arrears on his 1977 payments. On March 12, 1979,
along with a contempt judgment determining that
Merrill was in arrears on his 1978 payments, a judge
modified the alimony and support provision. For the
calendar year 1979 and thereafter, Merrill was left
with an obligation to pay Lynne thirty-six percent
of his "gross earnings", which term was defined as
"earnings from any source before business deductions
or expenses." The support obligation was subject to
a reduction factor not here material and to a
$20,000 cap.

At the time of the modification Merrill
was employed (as he had been in 1978) as a salesman
for an X-ray supply company. He earned no salary as
such but drew periodically against commissions. His
draws in 1978 were found to be $7,600,
approximately, in excess of the commissions that
were due him. In computing the 1978 arrearages the
judge did not treat [25 Mass.App.Ct. 517] that sum
as part of Merrill's income under the analogous
formula for computing alimony before the 1979
modification. Neither party appealed from the
contempt and modification judgments entered in
March, 1979.

Page 178

In June, 1979, Lynne filed (1) a contempt
complaint, alleging failures by Merrill to comply
with the alimony provisions of the judgment as
modified in March and with certain medical payments
provisions of the original judgment; (2) a complaint
for modification; and (3) an equity complaint
alleging that Merrill had made a fraudulent transfer
to his new wife of his interest in their jointly
owned condominium. In August, 1979, Lynne filed
another complaint for contempt based on more recent
failures to comply with the judgment. In April,
1980, Lynne filed a motion to amend the contempt
complaint of June, 1979, to consolidate its
allegations, those of the August, 1979 complaint,
and allegations of later instances of noncompliance
in a single contempt complaint. In February, 1981, a
different judge (hereafter "second judge") referred
to a master all of the pending complaints and the
motion to amend.

The master filed his report in June,
1982. Regarding alimony and support he made findings
as follows. At the end of July, 1979, Merrill had
left the employ of the X-ray supply company, by
which time he had made draws in excess of
commissions amounting to $8,510.15. From August 1
through December, 1979, Merrill had worked as an
independent commission salesman for Adco Surgical
Supply, where as before he had no salary but took a
monthly draw against commissions. The draws amounted
to $9,927.32 in excess of commissions. In computing
Merrill's support obligation for 1979, the master
did not attribute these overdrafts to Merrill as
earnings. Beginning in January, 1980, Merrill was
employed by Exodus Maine, Inc., again selling
medical supplies, for an annual salary of $12,000.
The master attributed that amount to Merrill as
earnings for 1980, declining to treat as income to
him numerous personal expenses paid for Merrill by
Exodus (rent, car, meals, etc.). For 1981, the last
year considered by the master in the original
report, the master added to Merrill's acknowledged
salary $2,000 paid by Exodus to Merrill's wife as
rental for [25 Mass.App.Ct. 518] Merrill's office
space in their marital home, a house purchased in
Maine by Merrill's wife in April, 1981.

By orders on two separate dates the
second judge ordered partial recommittal to the
master, originally for the purpose of determining
Merrill's 1982 income (the pending complaints,
although filed before 1982, sought "such further
amounts as may accrue to the date of hearing") and,
later, for the purpose of reexamining Merrill's 1980
and 1981 income in light of evidence newly adduced
by Lynne. For whatever reason (none is disclosed in
the record) the master's report on recommittal was
confined to the determination of Merrill's 1982
income. The master found it to be as stated in the
records of Exodus ($4,325), and arrearages for 1982
were computed by applying thirty-six percent to that
figure. (Merrill had made no payments in 1982.)

The proceedings before the master
relative to 1979, 1980, 1981, and 1982 arrearages
were still pending when, in July, 1984, Lynne filed
another (amended) complaint for contempt alleging
Merrill to be in arrears on his support obligation
for 1983. This complaint was not referred to a
master but was heard on the merits in August, 1984,
by another probate judge (hereafter, third judge).
Based on the evidence before him, the third judge
found that Exodus Maine Corp. was a one-employee
business which (despite the fact that Merrill's
mother was the president and sole shareholder) was,
in effect, the alter ego of Merrill. He attributed
as income to Merrill the entire gross sales of
Exodus, which, on Merrill's testimony, he found to
be between $75,000 and $80,000 for the corporate
fiscal year October 1, 1982, to September 30, 1983,
and not less than $100,000 for the corporate year
beginning October 1, 1983 (the corporate fiscal year
had not yet expired at the time of trial). The third
judge determined arrearages for 1983 to be $20,000
(the cap amount under the agreement) and ordered
Merrill to pay counsel fees and expenses of $1,200.
Merrill filed a notice of appeal from this judgment.

Thereafter the master's report on
recommittal (previously mentioned) relative to
Merrill's 1982 income was filed and came on for
hearing before the second judge on Lynne's
objections[25 Mass.App.Ct. 519] and on Merrill's
motion

Page 179

for adoption of the master's
original and supplemental reports. The latter was
allowed, and Lynne appealed from the ensuing
judgments entered on the several complaints for
contempt and modification.

MERRILL'S APPEALS

Merrill correctly does not contest that
the evidence (which is before us) heard by the third
judge warranted his finding that Exodus was
Merrill's alter ego. His sole contention is that the
third judge was not justified in attributing the
gross sales of Exodus as income to Merrill. The
gross sales of Exodus, Merrill suggests, may bear
little relation to its gross income. When acting as
a dealer, Exodus should be entitled to deduct the
cost of goods sold to arrive at an income figure
meaningful for purposes of ascertaining Merrill's
alimony obligation; and when it is acting as a
manufacturer's representative, its income should be
measured not by its gross sales but by the
commissions it received on those sales. As to
commission income and cost of goods sold, Merrill
argues, the evidence was silent.

On the evidence before him, we think that
the third judge was justified in concluding that
Exodus was a dodge created for the purpose of
enabling Merrill to avoid his support (and perhaps
also his income tax) obligations. He could properly
have regarded Merrill as an evasive witness and
drawn inferences adverse to him from the
uncertainties surrounding Exodus's finances. Compare
Grubert v. Grubert, 20 Mass.App.Ct. 811, 813, 822,
483 N.E.2d 100 (1985). Merrill was obviously in a
superior position to put in evidence the business
records of Exodus for the period at issue 1 so as
to explain the significance of the "gross sales"
figures rather than rely exclusively on a [25
Mass.App.Ct. 520] claim that Lynne had not carried
her burden of proof. Even after the judge's findings
were announced, Merrill could have filed a motion
for amendment of findings based on a showing through
records that the gross sales of Exodus were a
misleading measure of Merrill's gross income. There
is no reason to think the judge would ignore such a
showing if indeed a mistake had been made. 2

After entry on December 12, 1984, of
orders (entered on Lynne's and Merrill's complaints
for modification) modifying the definition of income
on which Merrill's support obligation was to be
predicated, 3
Merrill filed a motion for relief from judgment. The
sole basis was that the judge had determined
arrearages for 1983 using a now displaced standard
for calculating his income. Nothing in the
modification judgments, however, indicates that they
were to have retroactive effect, requiring the
reopening of income calculations in connection with
contempt actions previously gone to judgment. The
motion, moreover, contains no indication that
Merrill's income under the new definition would be
substantially different (if at all) from his income
under the old. There was no error in denying the
motion.

Page 180

LYNNE'S APPEALS

Citing Perma-Home Corp. v. Nigro, 346
Mass. 349, 191 N.E.2d 745 (1963), and Pesanelli v.
Lombardi, 349 Mass. 250, 207 N.E.2d 683 (1965),
Lynne argues that the unrepaid overdrafts against
commissions should have been treated by the master
and the second judge as income to Merrill for the
year 1979. The master explained in his report that
he did not treat overdrafts as income because the
first [25 Mass.App.Ct. 521] judge (who entered the
March 12, 1979, judgment) did not do so in computing
Merrill's 1978 income. The 1978 overdrafts were
drawn against the X-ray supply company for which
Merrill still worked at the time of the March 12,
1979, judgment. At that time Merrill was obligated
to repay the overdrafts in the sense that they could
be withheld from commissions to be earned. When he
severed his connection with the X-ray company later
in 1979, he was no longer obligated to repay the
overdrafts in the absence of an express or implied
agreement to repay from sources other than future
commissions. The burden of proving such an agreement
lies with the party seeking to establish the
existence of the debt. See Perma-House Corp., 346
Mass. at 352, 191 N.E.2d 745 (treatment of the third
request for ruling) and 354 (treatment of the
plaintiff's first request); Pesanelli, 349 Mass. at
252, 207 N.E.2d 683. The same reasoning applies to
the draws Merrill made in excess of commissions from
Adco Surgical Supply, with which, on the master's
findings, Merrill severed ties at the end of 1979.
Merrill's arrearages for the year 1979 must be
increased by a sum representing thirty-six percent
of the total of the overdrafts. 4

The master made express findings as to
his reasons for rejecting Lynne's contention that he
should look through the corporate form and treat as
income to Merrill substantial sums in excess of his
stated salary from Exodus. Some of these reasons
applied with dwindling force as Merrill's wife
relocated to Maine, the marital home became the
Exodus office, and Merrill's wife went on the Exodus
payroll 5.
Others were grounded squarely, however, in
deficiencies in Lynne's proof. The master stated
that "[n]o evidence was introduced with respect to
the financial status of Exodus ..., its
capitalization, or its current profit and loss
status. There is no evidence that Merrill has
received compensation in excess of his monthly
salary, nor that the corporation has accumulated
profits for Merrill's [25 Mass.App.Ct. 522] benefit
or in fact that the corporation has shown any profit
whatsoever." Other deficiencies in the evidence were
noted in the master's supplemental report relative
to Merrill's 1982 income: an example was the absence
of evidence concerning Exodus's income in its fiscal
year 1982.

Lynne filed numerous objections to the
findings and conclusions in the supplemental report
that underlay the master's refusal to conclude that
Exodus was a sham corporation. Her basic contention
was that the findings were erroneous and that other
findings should have been made. As these objections
could only be resolved by examining the evidence on
which the master based his findings, Lynne's
objections for the most part took the form of
requests that the master be ordered to furnish
summaries of the evidence for examination by the
court. These she was not entitled to as of right
because the evidence before the master had not been
taken by a stenographer appointed by the master.
Bills v. Nunno, 4 Mass.App.Ct. 279, 282-283 n. 3,
346 N.E.2d 718 (1976). Miller v. Winshall, 9
Mass.App.Ct. 312, 314, 400 N.E.2d 1306 (1980). This
also precluded review of the findings under the more
modern practice represented by Mass.R.Dom.Rel.P.
53(h). See, in particular, subpar. (3), as amended
in 1982. The master's general findings were not
inconsistent with or unsupported by his subsidiary
findings. The fact that the third judge, looking at
Merrill's

Page 181

1983 income, had by this time
reached the conclusion that Exodus was indeed a sham
does not require that the same conclusion be drawn
by a different fact finder on different evidence
relating to different periods of time. There was no
error in overruling the objections.

On the computation of Merrill's income,
it remains only to mention a motion for recommittal
to the master which was filed by Lynne after the
master had filed his supplemental report in late
1984. The basis for the motion was that the master
had responded in that report to only one of the two
earlier recommittal orders. He had ascertained
Merrill's 1982 income but had not reexamined his
findings relative to 1980 and 1981 income. That
reexamination had been sought to enable Lynne to
adduce the evidence concerning the financial
structure of Exodus, this in response to the
master's recital in [25 Mass.App.Ct. 523] his
original report of evidentiary deficiencies along
those lines. The judge (i.e., the second judge)
might have ordered a further recommittal. A motion
to recommit is addressed to the discretion of the
court. Minot v. Minot, 319 Mass. 253, 258, 66 N.E.2d
5 (1946). Peters v. Wallach, 366 Mass. 622, 626-627,
321 N.E.2d 806 (1975). The judge wisely declined to
recommit. The master's treatment of 1982 income
suggested little chance that he would reach a
different conclusion as to 1980 and 1981, and the
judge correctly deplored the innumerable proceedings
and the resultant delay that had attended the
litigation, ongoing by then for almost six years.
Plainly, the game was no longer worth the candle.
6

The master also found that Merrill had
violated his life insurance obligation under the
separation agreement by removing the three children
of his first marriage as beneficiaries of a $15,000
life insurance policy, designating in their place
his second wife and his children by her. The
obligation was to expire as to each child at
emancipation. Two children are now emancipated. The
third, in the normal course, will be emancipated (as
the agreement defines that term) by his graduation
from college this spring. Recognizing, apparently,
that specific enforcement of the obligation is now
of little value, Lynne seeks in her brief an
alternate, or compensatory, order, perhaps requiring
Merrill to insure his life for the benefit of the
children while their college loans remain unpaid.
The record does not indicate that this request was
made in the Probate Court. 7 We
decline to consider it here for the first time.
Dominick v. Dominick, 18 Mass.App.Ct. 85, 93, 463
N.E.2d 564 (1984), and cases cited.

Merrill concedes that, under G.L. c. 215,
§ 34A, fifth par., inserted by St. 1982, c. 282, and
the holding in Kennedy v. Kennedy, 20 Mass.App., Ct.
559, 562-563, nn. 7 & 8, 481 N.E.2d 1172 (1985), the
judgment must be amended to include interest on
arrearages. [25 Mass.App.Ct. 524] He asks only that
interest not be computed back to the date of the
respective complaints in the instances where the
arrearages determined by the judgment did not become
due until after the applicable complaint was filed.
An adjustment of this kind does not offend the
statute, which is reasonably read as contemplating
arrearages already due at the commencement of the
action. Thus, interest is to be computed from the
date of the applicable complaint to the date of
judgment after rescript (or the date of payment, if
earlier) on sums due at the filing of the complaint,
and from the date when payment should have been made
as to sums which came due thereafter. Although the
final amount due for a particular year could not be
ascertained with certainty until the year had
closed, payments were due on a bimonthly basis. The
sum found to be in arrears for any given year should
not be treated as having come due at year's end.
Absent agreement by

Page 182

the parties, the judge may
adopt a simplified method of approximating
installments, as, for example, by interest
averaging. 8
Interest should also be computed on the $300
sanction award imposed against Merrill from the date
when it was imposed conditionally.

We have no question that the allowance
given Lynne for counsel fees ($700 and $175 costs)
was inadequate and an abuse of discretion. Doubtless
the time spent was excessive. Merrill's pattern,
however, of consistently ignoring his obligations
under the separation agreement and the judgment nisi
over the four-year period encompassed by the
judgment necessarily required substantial
expenditures of time by counsel unless the defaults
were to be ignored. Determining the quality of the
work product and the hours reasonably required in
the case necessarily requires an exercise of
judgment by the judge; but, subject to that
determination, the governing principle in contempt
cases is that the plaintiff is entitled to "all of
the reasonable attorney's fees she incurred in her
efforts to enforce compliance with the support
orders." Kennedy v. Kennedy, 23 Mass.App.Ct. 176,
181, 499 N.E.2d 1224 (1986), aff'd, 400 Mass. 272,
508 N.E.2d 856 [25 Mass.App.Ct. 525] (1987). For
most of the defaults found by the master there was
no colorable excuse; consequently, there is no
reason for Merrill to be excused from compensating
Lynne for reasonable counsel fees necessarily spent
in securing compliance. It is not useful to discuss
this point further. Doubtless the second judge was
influenced in part by the modest total of the
arrearages Lynne had in his view succeeded in
establishing. That figure will be substantially
larger as a result of this appeal. For both reasons
the award of attorney's fees and costs must be
vacated and the matter redetermined.

No purpose would be served by discussing
the other points argued. They have been considered,
and no change is called for.

The contempt judgment entered August 31,
1984, and the order denying the motion for relief
from that judgment are affirmed. The modification
judgments entered December 12, 1984, are affirmed.
The contempt judgments entered the same day are to
be modified as follows: (1) arrearages are to be
computed to include those based on draws in excess
of commissions (see note 4, supra); (2) interest is
to be computed and added to the award of arrearages
in accordance with the principles stated in this
opinion; (3) the allowance for Lynne's attorney's
fees and costs is to be redetermined in accordance
with the guidelines stated herein. As so modified,
the contempt judgments are affirmed. Lynne is to
have an award of counsel fees in the amount of
$1,500 on account of this appeal, plus costs.

So ordered.

---------------

1 Not before the
third judge at trial, but part of the record before
us on the years that were the subject of the
master's report, is Exodus's fiscal year tax return
for the period October 1, 1980, to September 30,
1981, the period during which Merrill underwent
coronary bypass surgery and was disabled from
working for several months. Its gross profit that
year ($35,907) was reported to be the same as its
"gross receipts or sales," no deduction having been
made for "cost of goods sold". Although the
corporation's taxable income was reported as a
negative figure, the deductions from gross (taxes
excepted) seem largely consistent with the notion
that its expenses are primarily salaries paid to
Merrill and his wife and their living expenses.

2 For similar
reasons we reject Merrill's contention under Sodones
v. Sodones, 366 Mass. 121, 130, 314 N.E.2d 906
(1974), that Lynne failed to prove that he had the
ability to comply with an order to pay arrearages in
the amount determined. As to the burden of proof,
see G.L. c. 215, § 34, as amended by St. 1982, c.
328. Compare also Grubert v. Grubert, 20
Mass.App.Ct. at 822, 483 N.E.2d 100.

3 The judgment of
modification dated March 12, 1979, had described
Merrill's relevant income figure to be "earnings
from any source before business deductions or
expenses." The December 12, 1984, modification
defined his income as "salary or wages received by
Merrill Allen, other monies received by him as
compensation, monies received by him as interest or
dividends."

4 I.e., .36 X
($8,510.15 + 9,927.32), or $6,637.49.

5 Prior to April,
1981, for example, Merrill's living expenses in
Maine could reasonably be thought of as travel
expenses incurred purely for the convenience of
Exodus, Merrill maintaining at that time a separate
home for his wife and child in Massachusetts.

6 The master had
found Merrill $9,476.40 in arrears over a four-year
period. Lynne had on file motions for counsel fees
(based on 801.38 hours of work) and expenses
amounting to $104,939.65.

7 Lynne may have
raised the issue of a compensatory award in a motion
to vacate judgment under Mass.R.Dom.Rel.P.
60(b)(1975), but consideration at that stage would
be discretionary with the judge. Parrell v. Keenan,
389 Mass. 809, 814-816, 452 N.E.2d 506 (1983).

8 E.g., treating
the arrearages for a particular year as having been
due January 1, computing the interest due thereon up
to December 31, then halving that figure.